Torture - Edward Peters

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early personnel of the inquisitions, then, mark one difference in ecclesiastical inquisitorial procedure. A second is their readiness to withhold the names and the substantial testimony of witnesses. A third is their customary restriction of the aid of counsel for the defendant. Fourth was the admission of the testimony of otherwise incompetent witnesses: interested parties, those declared infamous, those already convicted of perjury and so forth. A fifth was the relaxation of the rules of evidence and the greater weight given to some indicia, particularly in the area of facial expressions, behaviour, apparent nervousness, and so on. A sixth consisted of the policy of deceiving the accused by introducing spies into their cells, making promises of leniency, and developing a system of carefully designed forms of interrogation that were much broader than those prescribed in the ordinary inquisitorial procedure. A seventh was the category of degrees of suspicion in which accused heretics were held; these determined the intensity of the procedure used against them. In short, the ecclesiastical inquisitors had greatly altered the character of the inquisitorial process as they had found it in the mid-thirteenth century in use in Italy and France. In turn, the secular courts found themselves influenced by the ecclesiastical procedure in the fourteenth and fifteenth centuries. It is in these reciprocal relationships between ecclesiastical and lay inquisitorial procedures, the historical development of forms of criminal procedure, and the changing social and political status of subject and citizen in the fifteenth and sixteenth centuries that the place of torture in European law of the ancien régime must be located.

      Ulpian’s response to the question ‘What is quaestio?’ and its variations among thirteenth- and fourteenth-century jurists shows the development of a jurisprudence of torture. Of what did torture consist? And how did it survive in the criminal procedure of the ancien régime? These questions must conclude our discussion of medieval and early torture.

      Consider a case in progress, in which half-proof, such as one eyewitness, and several indicia have emerged in the testimony. The accused has been interrogated and has not confessed. The judge then orders torture. The accused appeals against the order, and the appeal is heard and denied.

      The judge then must accompany the accused to the place of torture and will interrogate him under torture. A notary will be present, and a physician, in cases especially of severe torture. The torturer and his assistants are present, but no advocate for the accused. Generally, the accused might be shown the instruments of torture in order to obtain a confession quickly, particularly from the apprehensive or faint-hearted. The purpose of the torture is the confession of the accused, and the line of interrogation must be developed in such a way that at no time is the accused led on by suggestive questions.

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